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Giving While You Can: The 2012 Gift Tax Planning Opportunity-Part III Planning Techniques and Strategies For Making A 2012 Gift

Over the past two days, I have discussed why the 2012 Gift Tax Planning Opportunity is a big deal and provided several ‘best fits’ for making a 2012 Gift. Today, I conclude this series with some examples of planning techniques and strategies that can be used to maximize your 2012 gifts. As with any estate planning strategy, most of these techniques require careful coordination with an estate planning attorney, accountant and other advisers to ensure that they are properly structured:

1) Outright Gifts-The simplest gifting technique requires very little work and time to complete. This can be accomplished by any properly executed form of transfer and also requires less setup fees than the other techniques listed below.

There are several downsides to outright gifts. First, assets gifted directly to a beneficiary remain exposed to the claims of creditors. Second, if the gift is being made to a minor or an adult that is ill prepared to handle such a large-scale gift, the transferred assets can be wasted. Finally, while making such a gift removes it from the donor’s taxable estate, it will be included in the beneficiary’s estate.

2) Gifts to Trust-As an alternative, a gift to a trust may be more appropriate if there are concerns about creditor claims, taxes or waste. An irrevocable trust can hold the gifted property outside the beneficiary’s taxable estate and the assets can be distributed to beneficiaries at the discretion of the named trustees. Setting up a trust will require additional fees for set up and administration that are not required of a direct gift. A suitable trustee will also be required that fits the grantor’s specifications.

3) Grantor Retained Annuity Trust (GRAT)-Several of the more complicated trust arrangements could be useful for 2012. A GRAT, for example, can be used to pass property to beneficiaries while retaining annuity for the donor for a set period of years. Depending on the donor’s goals, the GRAT can be structured to have minimal annuity payments or as a means to ‘freeze’ the value of the donor’s estate.

4) Intentionally Defective Grantor Trust (IDGT)-Using an IDGT can provide several benefits. First, it can provide a way to remove an appreciating asset from a donor’s estate. Second, if a portion of the transferred assets are transferred in exchange for a promissory note, the donor can retain an income stream through the repayment of interest and the principal. Finally, because IDGTs are taxed to the Grantor of the Trust rather than the Trust for income tax purposes, the donor can further reduce the size of his estate while increasing the value of the property passing to their beneficiaries.

5) Qualified Personal Residence Trust (QPRT)-Individuals who own their primary residences may utilize the 2012 Gift by transferring their residence to a QPRT. The donor retains the exclusive right to live in the residence for a set period of years. At the end of that period, ownership transfers to the remainder beneficiaries of the trust. The donor can still live in the residence if they pay rent to the remainder beneficiaries. The longer the term of the trust, the smaller the gift would be. With the larger exemption in 2012, donors can set up a QPRT with a relatively short term to maximize their gifts.

6) Family Limited Partnerships/LLCs-If a donor wishes to pool several assets into a single entity, they can utilize a family limited partnership or LLC as a means to centralize the management of certain assets. A gift of an LLC or FLP interest can receive a valuation discount that would not be available to transfers of the underlying assets.

7) Intrafamily Loan Forgiveness-2012 provides individuals and families to consider removing outstanding loans from a donor’s taxable estate. Rather than continue to receive payments on a loan, the holder of a promissory note or other debt instrument can forgive all or a portion of the outstanding debt by making a gift of the forgiven amount.

8) Funding a large life insurance policy-Donors can utilize all or a portion of a 2012 gift to fund a large life insurance policy. If the beneficiaries do not need immediate access to the funds, this may be an attractive option to provide for a later benefit. To fully protect the gift from any taxation, the insurance policy should be purchased by an irrevocable life insurance trust (ILIT).

As we draw closer to the so-called “Taxmageddon,” the opportunity to fully take advantage of the current tax rates and exemptions shrinks. Many of the techniques discussed above require time to set up and fund, so for those looking to make a 2012 Gift, time is not on your side. The time to start planning your 2012 Gifts is now.